In re Ries

• Decision Date: 13 September 1927
• Docket Number: No. 63-482.,63-482.
• Citation: 138 A. 586
• Parties: In re RIES et al.
• Court: New Jersey Court of Chancery

138 A. 586

In re RIES et al.

No. 63-482.

Court of Chancery of New Jersey.

Sept. 13, 1927.

(Syllabus by the Court.)

In the matter of John F. X. Ries and others, charged with contempt of court. Parties held guilty of contempt.

Albert A. F. McGee and Moore & Butler, all of Atlantic City, for the prosecution.

Merritt Lane, of Newark, for respondent Ulysses G. Styron.

W. Holt Apgar, of Trenton, for respondent Mrs. Irene L. Ries.

Anna May Franz, respondent, pro se.

WALKER, Chancellor. Albert A. F. McGee, Esq., solicitor of record in the matter of Mary Rhodes, alleged to be a lunatic, on March 17, 1927, filed a petition herein charging the respondents with contempt of the power, authority, and dignity of the Court of Chancery in willfully violating and contemning the process of the court and the due administration of justice. Upon this petition an order was made requiring the respondents to show cause before the Chancellor, on March 29, 1927, why they should not be adjudged guilty of contempt in the premises and punished accordingly. The only respondents who were not served with certified copies of the petition, affidavits, and order, and who did not voluntarily appear, were John F. X. Ries and Mrs. Wahl. On the return of the order only Ulysses G. Styron and Mrs. Franz appeared, and she stated that her name was Anna May Franz. They both pleaded not guilty. Mr. Styron filed an answer. The cause was adjourned, by sundry adjournments, to May 31, 1927, for hearing; whereupon Mary Woods and Eddie Thomas, two of the respondents, appeared and pleaded guilty, and witnesses were examined. At the conclusion of the hearing the case was adjourned to June 10th, when argument was had for the prosecution and respondent Ulysses G. Styron. Mrs. Franz made no argument in person or by counsel, whereupon the cause was adjourned to June 11, 1927, when Irene L. Ries, one of the respondents, with her counsel, W. Holt Apgar, Esq., attended and pleaded guilty, and the cause was adjourned until July 12, 1927, and she was given leave in the meantime to put in a signed or sworn statement of facts concerning her participation in the matters, on oath or otherwise, but did not do so. The cause was then adjourned until this 13th of September, 1927.

The case was this: On March 12, 1924, a proceeding was instituted in this court to have Mary Rhodes declared of unsound mind. John F. X. Ries and Ulysses G. Styron appeared as counsel in defense of Mary Rhodes, and all pleadings and other papers for the defense were filed in their joint names as solicitors of record, which was irregular. See In re Stewart, 85 N. J. Eq. 3, 95 A. 739; State v. Merra, 99 N. J. Eq. 480, 134 A. 558. They both were, however, her legal representatives in the case. They acted not only as solicitors, but as counsel. After trial, the jury found a verdict of sanity. Afterwards, Mary Rhodes retained Clarence L. Cole, Esq., as solicitor and counsel to get back for her from Ries certain property which she had theretofore conveyed to him. The bill was filed May 1, 1925. Ulysses G. Styron was solicitor and counsel for Ries in this suit, which resulted in a decree being made on June 22, 1926, that Ries account to Mary Rhodes and turn her property over to her, upon certain conditions. An appeal to the Court of Errors and Appeals was subsequently dismissed. On November 9, 1926, another petition was presented to this court praying for a commission to determine the soundness of mind of Mary Rhodes. Such commission was issued, and thereafter Mr. Styron appeared as solicitor of record for Mary Rhodes, and both he and Ries acted as counsel. At the hearing the jury disagreed. Then, on December 14, 1926, an alias commission was issued, and the venire was directed by the court to be issued to a master instead of to the sheriff (In re Mary Rhodes [N. J. Ch.] 136 A 408), to summon 21 jurors, who were summoned, and at the trial unanimously agreed upon a verdict that Mary Rhodes was of unsound mind and did not enjoy lucid intervals, so that she was not capable of governing herself, her lands and tenements, goods and chattels, and that she had been in the same state of lunacy since December 15, 1923.

When the jury disagreed in the second lunacy case and the trial thereby became abortive, it necessarily became apparent to the defense and its representatives that further proceedings would be taken and that another jury might agree; and thereupon Mrs. Rhodes, the subject of the inquisition, was removed from her home by Ries and secreted, so that she could not be served with notice of the execution of any lunacy commission, in the apparent belief that that was absolutely necessary in all circumstances and in the hope that that would frustrate them. It did not. Rule 235 of this court requires that 10 days' notice of the taking of an inquisition shall be given to the subject thereof, unless the court, for good reason, allow a shorter notice or dispense with notice altogether. There can be no doubt but that the court, in the peculiar circumstances of this case and the disappearance of Mrs. Rhodes, would have dispensed with such notice, had that fact been brought to its notice. The court controls its own rules, and rule 4 provides that the rules shall be considered general for the government of the court and the conduct of causes, and as their design is to facilitate business and advance justice, they may be relaxed or dispensed with by the court in any case where it shall be manifest that a strict adherence to them would work surprise or injustice. In Lindsley's Case, 46 N. J. Eq. 358, 19 A. 726, Mrs. Lindsley was not served personally with a notice of the taking of the inquisition. Such a notice was left with her brother, and was served upon Henry S. Harris, Esq., a lawyer, who had appeared in behalf of Mrs. Lindsley at the several previous inquisitions and in all proceedings concerning them. In that case, different from this, Mr. Harris afterwards appeared for Mrs. Lindsley at the inquisition, cross-examined witnesses produced by the petitioner, and produced witnesses himself. It was there held by Chancellor McGill, at page 360 (19 A. 727), that it was not intimated that Mrs. Lindsley did not receive notice or that she did not have ample time to prepare for hearing, and that the objection was rested wholly on the fact that it had not been affirmatively shown that notice had reached Mrs. Lindsley; that under the circumstances, the failure to show that notice was not received, or that prejudice had for that reason been suffered, were fatal to the objection. Now, of course, the opinion was written with reference to the facts of that case, which differ from this. Besides, an inquisition of lunacy is a proceeding for the benefit of the community and of the unfortunate herself.

The fact is that Mr. Styron was served with a notice of the taking of this alias inquisition. He had appeared for the subject, Mrs. Rhodes, in this very case on the taking of the inquisition at the original hearing; and this, as stated, was on alias in the same cause, and it would seem that notice to her solicitor, who had not withdrawn his appearance on the record, would be sufficient, at least when it was not shown that the subject had suffered any injury. I take it that, when a solicitor appears on the record for a client in a cause, he is that solicitor until he is formally discharged by the client himself, or himself withdraws of record in the clerk's office, on due notice to his client. This Mr. Styron did not do. The Court of Errors and Appeals has gone so far as to provide by rule that service upon a solicitor of record for the adversary party in the court below shall be deemed good service until the respondent has given notice that he has employed another, naming him in such notice, or until a new appearance entered by the new attorney or solicitor. See rule 2 of the Court of Errors and Appeals. Now, I hold that Mr. Styron was attorney for Mrs. Rhodes on the alias commission, in the circumstances of this case, and that, as there is nothing to show that she was harmed by lack of personal service upon her, the inquisition and decree thereon are valid. This may be dictum as the validity of the decree in lunacy is not involved, but it is pertinent as against Mr. Styron in this proceeding. An attorney seeking to withdraw must make an application to the court, for the relation does not terminate formally until there is a withdrawal of record; at least so far as the opposite party is concerned, the relation otherwise continues until the end of the litigation. 6 C. J. 674.

The petition proceeds upon the theory that John F. X. Ries and Ulysses G. Styron, both solicitors of this court, conspired to defraud and take from Mrs. Rhodes all of her property. Ries, as stated, was not served, and so far as Mr. Styron is concerned, it is not necessary to consider and adjudge whether or not he was a party generally, or to all, to that fraud undoubtedly perpetrated by Ries upon Mrs. Rhodes. Incidentally, that matter will be hereafter mentioned, but as Mr. Styron is charged with being a party to the specific act of taking Mrs. Rhodes surreptitiously out of the state of New Jersey, to Wilmington Del., and there and here participating in a transaction whereby Mrs. Woods was, for a consideration, to be induced to drop the lunacy proceeding above mentioned, I will treat alone that subject with reference to the contempt of this court. The facts were these:

Mr. Ries, having been engaged in endeavoring to defeat all of the litigations brought against Mrs. Rhodes and that brought by her against himself, said to Mr. Styron that he, Ries, was almost ready to collapse and wanted him, Styron, to go with him and certain other parties to Wilmington, Del., as Styron had been with him through all the litigations, saying he, Ries was about at the end of his rope and wanted Styron to go as a friend. This is what Mr. Styron says. He also states that...